On September 24, 2015, the Department of State issued an update that supersedes the previously released October Visa Bulletin. By moving many filing dates back, the update radically changed the recently announced benefit offered by a revised procedure for determining immigrant visa availability and filing adjustment of status applications. The revised process allows foreign nationals to file adjustment of status applications in the United States or visa applications overseas once their filing dates are listed on a separate chart on the monthly Visa Bulletin, "Dates for Filing Applications." In the prior version of the October Visa Bulletin, these dates were significantly earlier than the priority dates available for final adjudications that would result in green cards. The filing of an adjustment application affords significant benefits such as work authorization, travel permission, the ability to exercise job mobility as well as the ability to protect the age of a child under the Child Status Protection Act.

With the latest change for October, the Department of State moved the dates back substantially. In a statement announcing the change, U.S. Citizenship and Immigration Services explained that following consultations with the Department of Homeland Security, the dates for filing applications for some categories in the family-sponsored and employment-based preferences were adjusted "to better reflect a timeframe justifying immediate action in the application process." Potentially thousands of applicants who had already gathered documents, prepared applications, paid for medical examinations, and incurred other costs based on the previous dates may have to wait many months for their filing dates to be current enough so they can file, unless the situation changes. Advocates are vowing to pursue possible avenues to make that happen.

As a background, INA 245(a)(3) only allows for the filing of an I-485 adjustment of status application when “an immigrant visa is immediately available.” Visa availability will no longer be defined by when visas are actually available. Both versions of the October Visa Bulletin now view it more broadly as “dates for filing visa applications within a time frame justifying immediate action in the application process.” The USCIS similarly views visa availability opaquely as "eligible applicants" who "are able to take one of the final steps in the process of becoming U.S. permanent residents." These new interpretations provide more flexibility for the State Department to move the filing date even further, and make it closer to current.

As proposed in a 2014 blog, visa availability ought to be based on just one visa being saved in the backlogged preference category, such as the India EB-3, like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving day is pardoned by the President and not consumed, similarly one visa can also be left intact rather than consumed by the foreign national beneficiary. So long as there is one visa kept available, it would provide the legal basis for an I-485 filing through the earlier filing date, and this would be consistent with INA §245(a)(3). Filing dates could potentially advance and become current. Therefore, there was no legal basis to retrogress the priority dates. Rather the government could have advanced them.

It is not clear what the government's motivation was to move the dates backwards when there was no legal need to do so. Was it that the USCIS could not have been able to cope with the increase in adjustment filings or was it something more sinister such as USCIS or DOS officials with anti-immigrant tendencies gaining the upper hand and deciding not to grant benefits so easily to those caught in the crushing backlogs? Litigation options are potentially available. under the Administrative Procedure Act on the grounds that the government acted arbitrarily and capriciously. During the July 2007 visa bulletin fiasco, when the American Immigration Council's Legal Action Center threatened litigation after it rescinded the bulletin that made EB dates current, the government backed down. Any litigation strategy must ensure that the dual date system remains intact as a court could well resolve the issue by voiding the filing dates and restoring only one priority date as before.

Below are a few examples of the extreme changes in the revised October Visa Bulletin:

EB2 China: Moved from 5/1/2014 to 1/1/2013 (1 year 5 months)

EB2 India: Moved from 7/1/2011 to 7/1/2009 (2 years)

EB3 Philippines: Moved from 1/1/2015 to 1/1/2010 (5 years)

FB1 Mexico: Moved from 7/1/1995 to 4/1/1995 (3 months)

FB3 Mexico: Moved from 10/1/1996 to 5/1/1995 (1 year 5 months)

The very least that the DOS and the USCIS should do is to allow a 30 day period for people who could have previously filed on October 1 to be able to do so. One saving grace is that even the revised October Visa Bulletin preserves the dual filing system, and thus there is flexibility in determining visa availability for purposes of establishing more advantageous filing dates in the future. In addition to litigation, consider pursuing other forms of advocacy. During the July 2007 visa bulletin fiasco, thousands of would be applicants sent roses Gandhi-style to the USCIS as a sign of peaceful protest. People should also sign this White House petition in order to get the requisite number of signatures so that it may be considered by the President. In the words attributed to Yogi Berra who died recently, "It's Deja Vu All Over Again." Of course, one will experience a more pleasant sense of deja vu if the government restores the earlier filing dates in the October 2015 visa bulletin like it did with the July 2007 visa bulletin.

How are immigrants currently combating labels and stigmas and what can we do more to promote immigrant pride?

I am participating in #MoreThanALabel: Immigrant Stories, Simmons College’sonline MSW Program’s campaign to promote transcending labels. By participating in this campaign, I will be sharing my thoughts and how I believe we can shatter the stigmas often attributed to immigrant communities.

As Pope Francis arrived in the United States on September 23, 2015 and was cheered by thousands in Washington DC, Sophie Cruz, a 5 year old US citizen whose parents are undocumented, came forward and handed him a t-shirt and a letter. The t-shirt read, “Pope: rescue DAPA, so the legalization would be your blessing.”

Sophie then said this later in the day:

"I believe I have the right to live with my parents. I have the right to be happy. My dad works very hard in a factory galvanizing pieces of metal. All immigrants just like my dad feed this country. They deserve to live with dignity. They deserve to live with respect.”

President Obama’s executive action announced last November 2014 would have allowed Sophie’s parents to defer their deportations and apply for temporary authorization to remain in the United States so that they could contribute more meaningfully to America. While millions of immigrants and their supporters cheered after Obama’s announcement, not everyone was pleased. Texas, along with 24 more states and governors, sued to block the Deferred Action for Parent Accountability (DAPA) program. Judge Andrew Hanen in a Texas federal district court readily agreed with the plaintiffs that DAPA was not issued in accordance with law and blocked the program. Also blocked was the expansion of another program that was announced in 2012 to allow those who came before 16 and who fell out of status for no fault of their own to defer their deportation. The expansion would have granted work permits for 3 years instead of 2 years, and would have also lifted the age limit of 31. The Fifth Circuit Court of Appeals is about to decide whether to reverse the lower court or not. It is anticipated that the Fifth Circuit will affirm Judge Hanen’s decision, and the battle will move up to the Supreme Court.

Young Sophie’s actions and her interaction with Pope Francis today are powerful and poignant, and perhaps more effective than the current legal team defending the lawsuit. She has shown how mean spirited the efforts have been to block DAPA. Immigrants work very hard and like her dad they “feed this country.” Pope Francis in turn wants to highlight the lack of access for migrants as one of the most pressing issues of our time. Sophie and Pope Francis have further shown how wrong Donald Trump has been in falsely claiming that undocumented immigrants from Mexico are criminals and rapists. While Trump and others wish to abolish birthright citizenship protected by the Fourteenth Amendment, Sophie and the Pope have demonstrated that repeal of birthright citizenship will result in absurd and disastrous results. Birthright citizenship renders all born in this country to be treated equally as Americans no matter who their parents are or where they came from, and it also prevents a permanent underclass from taking root that will continue for generations. The demonization of immigrants reached another nadir recently when Trump did not dissuade anti-Muslim comments in his rally and Dr. Carson categorically stated that he would never support a Muslim to be President of the United States.

In their serendipitous encounter today, Sophie and Pope Francis courageously shattered the false labels and stigmas that are associated with immigrants. It is not that people want to remain undocumented. They are forced to remain undocumented because our immigration system is terribly broken and does not afford meaningful pathways to legally come to America to work like Sophie’s dad or to unite with families. Congressional inaction in not expanding these pathways has contributed to the buildup of 12 million plus undocumented people, who work hard and contribute to the well being of America, and who now according to Trump, should all be deported. We hope that Sophie and Pope Francis reverse this deplorable trend and shine the way towards repairing America’s broken immigration system. America will only be made great again when Sophie can live without fear and succeed!

The changes made to the priority date system in the October 2015 Visa Bulletin have been positive and will provide much relief to beneficiaries of visas petitions caught in the employment and family-based backlogs. There will be two dates for the very first time: a filing date and a final action date. The filing date will allow the filing of adjustment of status applications if eligible foreign nationals are in the United States and the filing of visa applications if they are outside the country. The final action date will be the date when green cards can actually be issued.

The October 2015 Visa Bulletin will thus allow the filing of applications prior to the date when green cards actually become available. Until now, the cut-off date was based on when visas were actually available. While there has been no official guidance, and many of the practice advisories issued make scant reference, it is important that we advocate that the age of the child also be protected under the Child Status Protection Act (CSPA) at the time that the filing date becomes current for the applicant. A child ceases to be considered a child upon turning 21, and can no longer immigrate as a derivative with the parent, especially when the parent is likely to be caught in the backlogs. It is thus important that the CSPA is made applicable to protect the child’s age at the time of the earlier filing date. This will also promote legal consistency and harmony with respect to the broader definition of visa availability in the new visa bulletin. Readers are cautioned not to expect that this will happen, and the whole purpose of this blog is to advocate that children get CSPA protection under the new visa bulletin.

I celebrated the broadening of the interpretation of visa availability in my last blog, Godot Has Arrived: Early Adjustment Of Status Applications Possible Under The October 15, 2015 Visa Bulletin, and was also happy to note that these changes were consistent with what Gary Endelman (who is now an Immigration Judge) and I have propounded since 2010 in The Tyranny of Priority Dates. As a background, INA 245(a)(3) only allows for the filing of an I-485 adjustment of status application when “an immigrant visa is immediately available.” Visa availability will no longer be defined by when visas are actually available. The October Visa Bulletin now views it more broadly as “dates for filing visa applications within a time frame justifying immediate action in the application process.” The USCIS similarly views visa availability opaquely as "eligible applicants" who "are able to take one of the final steps in the process of becoming U.S. permanent residents." These new interpretations provide more flexibility for the State Department to move the filing date even further, and make it closer to current. The new way of interpreting visa availability makes it possible to file an adjustment of status application earlier than before, along with all the accompanying benefits that arise, such as job portability under INA 204(j), work authorization for the principal and derivative family members and travel permission. Similarly, CSPA protection should also be made available to children who may age out at the time of the earlier filing date so as to maximize the chance for children to obtain their green cards with the parent.

Before the government finalizes all the details, I strongly advocate that if there is now a broader interpretation of visa availability for purpose of filing an I-485 adjustment application at the filing date, this same filing date should lock in the CSPA age too. Otherwise the whole scheme collapses like a house of cards if there is no consistency. If there must be visa availability to file an I-485 under INA 245(a)(3) in order to enjoy 204(j) portability, it makes sense to use the same new interpretation of visa availability to lock in the child’s age at the filing date. Imagine filing an I-485 for a minor at the time of the filing date who is not protected under the CSPA, and once s/he ages out, is no longer eligible to even be an adjustment applicant, and has to leave the US while the parents can continue as adjustment applicants.

There’s also no point in providing the earlier filing date in the new visa bulletin for immigrant visa applicants overseas, otherwise they get no tangible benefit, except to be able to lock in the child’s age earlier at the time of the filing date under the CSPA. (There is potential for advocating that beneficiaries who have filed visa applications overseas under the earlier filing date be paroled into the US under INA 212(d)(5) while they wait for the final acceptance date to materialize, but I will reserve this for a future blog).

Under INA 203(h)(1)(A), which codified Section 3 of the CSPA, the age of the child under 21 is locked on the “date on which an immigrant visa number becomes available…but only if the [child] has sought to acquire the status of an alien lawfully admitted for permanent residency within one year of such availability.” If the child’s age is over 21 years, it can be subtracted by the amount of time the applicable petition was pending. See INA 203(h)(1)(B).

Under INA 245(a)(3), an I-485 application can only be filed when an “immigrant visa is immediately available.”

Therefore, there is no meaningful difference in the verbiage relating to visas availability – “immigrant visa becomes available” and “immigrant visa is immediately available” under INA 203(h)(1)(A) and INA 245(a)(3) respectively. If an adjustment application can be filed under the new interpretation of visa availability pursuant to 245(a)(3), then the interpretation regarding visa availability under 203(h)(1)(A) should be consistent.

Some of my esteemed colleagues have pointed out that one who does not seek to acquire permanent residency within the time of the filing date, but rather, seeks to acquire permanent residence within one year of the final action date may lose out under the CSPA. This may well be the case. However, it is far more advantageous for a child’s age to be locked in at the earlier filing date than the final action date. In order to be consistent and for this scheme to withstand potential legal challenges, under the broader definition of visa availability which must be applied consistently, permanent residency should be sought within one year of the filing date rather than the final acceptance date.

Gary Endelman and I fine tuned our proposal in 2014 by advocating that visa availability ought to be based on the just one visa being saved in the backlogged preference category, such as the India EB-3, like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving day is pardoned by the President and not consumed, similarly one visa can also be left intact rather than consumed by the foreign national beneficiary. So long as there is one visa kept available, it would provide the legal basis for an I-485 filing through the earlier filing date, and this would be consistent with INA §245(a)(3). Similarly, this new visa availability ought to also protect the child from aging out under INA 203(h)(1)(A). Filing dates could potentially advance and become current. Admittedly, it is not expected that the government will follow our “Thanksgiving turkey” proposal to the hilt, at least not yet, and it has been suggested by Greg Siskind on his Twitter feed that the filing dates will not move much in the first few months. The filing of early I-485 applications will give Charlie Oppenheim at DOS a better sense of how visa numbers will actually be utilized for the rest of the year. “The goal of the changes is not to so much to allow people to file early as to have more accurate final action dates,” according to Siskind.

Regardless of whether the DOS and USCIS wish to advance the filing dates rapidly or not, it is important to protect a child from aging out at the time of the earlier filing date. Apart from ensuring that the parent and child immigrate together, this consistency will also make the new visa bulletin legally sound.

As a background, INA § 245(a)(3) only allows for the filing of an I-485 adjustment of status application when the visa is “immediately available” to the applicant. It has always been linked to the monthly State Department Visa Bulletin, which announces dates based on actual visa availability. This has resulted in decade long backlogs in some preference categories. Systemic visa retrogress retards economic growth, prevents family unity and frustrates individual ambition all for no obvious national purpose. We advocated that there may be a different way of determining visa availability that would not be determined by when visas can actually be given, but when there is a possibility of visas becoming available in the near future, or when there is at least one unused visa remaining in the preference category. Under this new interpretation of visa availability, we proposed that there could be two filing dates: the first would be based on unused visas, and the second is when there are actual visas, which would result in a green card for the applicant.

Godot has finally arrived!

The U.S. Department of State, starting in October 2015, has issued a visa bulletin with two “application dates” for beneficiaries of family-based and employment based immigrant petitions. There is an application final action date when the beneficiary will be eligible to receive his/her green card, but there is also a date for filing visa or adjustment applications which is when the beneficiary will be eligible to file , and if the beneficiary files an adjustment of status application, he or she will get the benefits thereof such as an Employment Authorization Document (EAD), advance parole and protection under the Child Status Protection Act (CSPA).

As an example, Indian born applicants with approved I-140 petitions in the EB-2 category whose priority dates are July 1, 2011 or earlier can begin submitting adjustment applications in October 2015 even though they would not get the actual green card until their priority dates are current under the application final action date table, which could be many years yet. In the meantime they could avail themselves of the benefits of an adjustment application, such as an EAD, advance parole and protecting the child from aging out under the CSPA. It bears repeating that only beneficiaries with priority dates of May 1, 2005 in the EB-2 category can actually receive their green card next month. This new version of the visa bulletin will greatly impact many who have been caught in the crushing backlogs.

Visa availability will no longer be defined by when visas are actually available. The October Visa Bulletin now views it more broadly as “dates for filing visa applications within a time frame justifying immediate action in the application process.” The USCIS similarly views visa availability opaquely as "eligible applicants" who "are able to take one of the final steps in the process of becoming U.S. permanent residents." These new interpretations provide more flexibility for the State Department to move the filing date even further, and make it closer to current. The new way of interpreting visa availability makes it possible to file an adjustment of status application, along with all the accompanying benefits, and to even lock in the age of a child under the CSPA, whether the applicant is in the United States or processing at a US consulate. While I strongly advocate that the same interpretation concerning visa availability that applies to eligibility for adjustment of status should also apply to the CSPA, we need to await further confirmation from the government on CSPA eligibility.

Here are some preliminary observations after brainstorming with some of my esteemed colleagues at the Alliance of Business Immigration Lawyers, www.abil.com, although these are my own views. We must await further guidance from the DOS and USCIS to be sure, but must strongly advocate for these positions:

I-485 adjustment applications filed under the new filing priority date will result in the same benefits, which is EAD, Advance Parole, 204(j) portability and CSPA protection.

With respect to an “after acquired” spouse, where the principal already has a pending I-485, the spouse can file under the new filing priority date. Ultimately, both the principal and spouse’s I-485 application will get adjudicated when the priority date of the principal become current under the final action priority date.

There is no prohibition to filing a concurrent I-140/485 or I-130/485 under the filing priority date.

With respect to a priority date that has been captured from an old EB petition, the same rules apply – you have to see whether the captured priority date coincides with the filing priority date or the final action priority date.

There may be no need to submit a medical with an I-485 filed under the filing priority date, especially when there is a long interval (years) between the filing and the final action priority date.

The new policy applies to both Family I-130 and Employment I-140 petitions.

With respect to consular processing of cases, the filing priority date would be equally applicable, especially to lock in the age of a child under CSPA.

Do we have to rush to file all our I-485s in October 2015 itself? The jury is not yet out whether the dual priority dates system would cause more backlogs and retrogression; although probably not, since the filing priority date, unlike the 2007 July Visa Bulletin, does not signify that visas are immediately available. We have enough time (around the 10th of the month) to wait and watch as to how the dates will progress in November and after that.

When Gary Endelman (who has since been appointed as an Immigration Judge) and I commented on the Visa Modernization proposals, we questioned whether the government was truly serious about ameliorating some of the problems in the immigration system through administrative reform. The DOS and DHS have lived up to expectations. At the end of the day, immigration policy is both about fairness, as well as how the United States can attract and retain the best and the brightest regardless of nationality who wish to join us in writing the next chapter of our ongoing national story. There are two ways to achieve progress. Congress can change the law, which it persists in refusing to do, or the President can interpret the existing law in new ways, which he has done. Obviously, the innovations in the visa bulletin are still a band-aid. It would be desirable if applicants get their green cards rather than remain perpetual adjustment of status applicants. For that to change, for sweeping Comprehensive Immigration Reform to become reality, all of us must realize that immigration is not a problem to be controlled but an asset to be maximized.

The Board of Immigration Appeal’s decision in Matter of J-R-R-A-, 26 I&N Dec. 609 (BIA 2015) is a milestone decision in protecting an asylum applicant who presented competency issues that were not appropriately assessed by the Immigration Judge. It also untangles the ethical conundrum that a lawyer has when the client is unable to testify credibly due to a cognitive disability.

The respondent in Matter of J-R-R-A- was a native and citizen of Honduras, who claimed that he would be harmed upon his return to Honduras by a man who had murdered his brother 15 years ago. His testimony was characterized as confusing, disjointed and self-serving. He also laughed inappropriately during the hearing. Although the Immigration Judge observed that the respondent’s behavior and testimony were unusual, the BIA found that the respondent’s competency should have been assessed under Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011). In the landmark Matter of M-A-M- decision, the BIA held that for a respondent to be competent to participate in an immigration proceeding, he or she must have a rational and factual understanding of the nature and object of the proceeding and a reasonable opportunity to exercise the core rights and privileges afforded by the law. As the respondent demonstrated various indicia of incompetence in Matter of J-R-R-A-, the BIA held that the IJ should have taken measures to determine whether the respondent was competent to participate in these proceedings in accordance with the guidelines in Matter of M-A-M-, and remanded the case back to the IJ.

The BIA could have stopped there and it would have still been a good decision, but the BIA went further and acknowledged that the respondent’s testimony was not credible due to the respondent’s diminished capacity, which prevented him from obtaining asylum. The IJ had denied the asylum claim by curtly opining that the respondent’s cognitive difficulties are “not a license to give incredible testimony.” A respondent presenting an asylum claim must establish a well-founded fear of persecution by demonstrating both a genuine subjective fear of persecution and by also presenting evidence establishing objectively that such a fear is reasonable. See INS.v. Cardoza-Fonseca, 480 U.S. 421 (1987). In light of such a standard, an asylum claimant must present credible testimony in order to establish his or her subjective fear of persecution, supported by objective evidence to establish that the fear is reasonable. A respondent with diminished capacity may not be capable of presenting credible testimony, and as in the case of the respondent in Matter of J-R-R-A-, may be at grave risk of being denied asylum even if he or she has a genuine fear of persecution.

One can also draw important lessons from this decision for the lawyer who represents a client with diminished capacity. A lawyer under the ethical rules of professional conduct cannot “offer evidence that the lawyer knows to be false.” See ABA Model Rule 3.3(a)(3). Thus, when a lawyer observes a client presenting testimony knowing that it is false, the lawyer is under an ethical obligation to not have the client offer it. If the client has already offered evidence that the lawyer knows is false, under ABA Model Rule 3.3(b), the lawyer is under an ethical duty to take reasonable remedial measures to rectify the fraudulent conduct, and if necessary, disclose it to the tribunal. ABA Model Rule 1.14 also instructs a lawyer to maintain a normal lawyer-client relationship as far as possible with a client who presents competency issues, and thus all the ethical rules that affect the lawyer-client relationship are applicable even when a lawyer represents a client with diminished capacity, including the lawyer’s duty of candor to the tribunal. Still, Rule 1.14 allows a lawyer to take reasonably protective action when a client with diminished capacity is at risk of harm by either consulting with individuals or entities, and in appropriate cases, seek the appointment of a guardian or guardian ad litem.

The BIA in Matter of J-R-R-A- implicitly recognized the lawyer’s ethical conundrum regarding her duty of candor to the tribunal, but held that a client with diminished capacity should be allowed to provide testimony that may not be believable so long as there is “no deliberate fabrication involved.” In this way, the lawyer may allow the client to meet the subjective fear prong under the asylum standard even if the testimony is not true, and the IJ should then focus on whether the respondent met his burden of proof based on the objective evidence in the record. The BIA commendably recognized that “[t]his safeguard will enhance the fairness of the proceedings by foreclosing the possibility that a claim is denied solely on testimony that is unreliable on account of the applicant’s competency issues, rather than any deliberate fabrication.”

When I last blogged on mental competency issues in immigration practice, I noted that this area was a work in progress and there was much work that needs to be done to develop standards and provide clear guidance. Matter of J-R-R-A- goes a long way in filling this lacuna by recognizing the vulnerability of an asylum claimant with competency issues, and also reconciling the lawyer’s ethical conflict regarding not offering false evidence to a tribunal. I also commend readers to the ABA’s recent excellent publication entitled Representing Detained Immigration Respondents of Diminished Capacity: Ethical Challenges and Best Practices. Representing clients with mental competency issues in immigration matters presents great challenges as well as amazing rewards. Such clients are indeed the most vulnerable, especially when presenting complex asylum claims in immigration court. The lawyer plays a vital role in ensuring that the client is protected and is provided with the necessary safeguards, and can also gain tremendous satisfaction in being able to assist such a client navigate through the labyrinthine immigration system and emerging victorious.

At a time when politicians in the western world, swayed by public opinion, are showing increasing hostility toward asylum seekers fleeing persecution, and making it harder for them to assert claims that are accorded to them under law, we can only hope that decisions such as Matter of J-R-R-A- break the mold and provide necessary safeguards, especially when asylum claimants have diminished capacity. While this decision involved an adult with diminished capacity, minors inherently have diminished capacity, and should be equally protected under Matter of J-R-R-A- especially when they have undertaken hazardous journeys fleeing persecution, and some have also died tragically in pursuit of freedom. Although only an administrative decision, Matter of J-R-R-A- is a shining example of how law ought to develop and evolve in safeguarding the rights of a vulnerable population fleeing persecution, notwithstanding the political attitudes of the day.